tag:blogger.com,1999:blog-93803162019-03-12T08:48:17.137-04:00Disability LawPeriodic updates on developments in disability law and related fields.Samuel Bagenstoshttps://plus.google.com/111814914789759061338noreply@blogger.comBlogger2000125tag:blogger.com,1999:blog-9380316.post-79197814970516313892013-09-16T09:23:00.001-04:002013-09-16T09:23:16.672-04:00Arkansas District Excludes Kids from School Because They Might Have HIV<div class="tr_bq">See this <a href="http://5newsonline.com/2013/09/13/hiv-concerns-keep-kids-out-of-pea-ridge-schools-disability-group-says/">article</a>, which begins:</div><blockquote>Local disability rights advocates are accusing the Pea Ridge School District of kicking students out of school because of fear over HIV exposure.&nbsp;</blockquote><blockquote>The Disability Rights Center of Arkansas sent out a statement Friday afternoon calling the school district’s refusal to allow three students to continue attending school“unlawful”, saying the students were being denied the right to attend school until documentation proves they are not HIV-positive.</blockquote>This action, if it's being reported correctly, pretty clearly violates the ADA. &nbsp;This was a big issue during the 1980s, and the Rehabilitation Act cases pretty solidly held that a school district can't exclude a kid just because s/he has HIV. &nbsp;Some fights have to be engaged over and over, it seems.Samuel Bagenstoshttps://plus.google.com/111814914789759061338noreply@blogger.com0tag:blogger.com,1999:blog-9380316.post-16482998459251288322013-09-11T11:56:00.000-04:002013-09-11T11:56:12.218-04:00Father Says YMCA After-School Program Refuses to Accept Son with DiabetesThis again? &nbsp;See this <a href="http://www.wral.com/raleigh-father-files-complaint-after-ymca-excludes-diabetic-son/12872442/">article</a>, which begins:<br /><blockquote class="tr_bq">A Raleigh father says he has filed a complaint with the U.S. Department of Justice after a YMCA after-school program declined to accept his son, who has Type I diabetes.&nbsp;</blockquote><blockquote class="tr_bq">Bruce Hatcher, whose son is a kindergartner at Underwood GT Magnet Elementary School, says YMCA officials told him that they do not administer shots and would not give his son a shot if the boy’s blood sugar dropped too low.&nbsp;</blockquote><blockquote class="tr_bq">“It’s more than just a shot. It’s a life-saving shot,” said Hatcher, who asked that his son’s name not be included. “If you had a kid, or anyone had a kid in this situation, you would understand a little better.”</blockquote>Samuel Bagenstoshttps://plus.google.com/111814914789759061338noreply@blogger.com0tag:blogger.com,1999:blog-9380316.post-13582469514284306782013-09-09T17:57:00.002-04:002013-09-09T17:57:32.113-04:00Florida Atlantic U. Student Sues Kaplan for Refusing to Provide Sign-Language Interpreter for LSAT CourseSee this <a href="http://www.dailybusinessreview.com/PubArticleDBR.jsp?id=1202618561625&amp;rss=rss_dbr&amp;slreturn=20130809154724">piece</a> on Matt Dietz's latest case.Samuel Bagenstoshttps://plus.google.com/111814914789759061338noreply@blogger.com0tag:blogger.com,1999:blog-9380316.post-81123153757606164062013-09-09T17:54:00.002-04:002013-09-09T17:54:21.164-04:00Las Vegas Sun on "Wide-Ranging Problems" in Nevada Mental Health System<div class="tr_bq">See this <a href="http://www.lasvegassun.com/news/2013/sep/09/decay-nevadas-mental-health-system-goes-beyond-raw/">article</a>. &nbsp;An excerpt:</div><blockquote>In April, the story of one man, James F.C. Brown, sent packing with a one-way bus ticket from the Rawson-Neal Psychiatric Hospital in Las Vegas to Sacramento sparked outrage about Nevada’s mental health system.&nbsp;</blockquote><blockquote>The story, first reported by the Sacramento Bee, provided a glimpse into one aspect of the state’s troubled mental health system, but subsequent investigations have revealed wide-ranging problems in a system struggling to provide even basic services for thousands of mentally ill people in Nevada.</blockquote>If you read to the end of the article, you will find some basic things that the state could be doing to build up community services and provide people the supports they need without having to build new hospital beds.Samuel Bagenstoshttps://plus.google.com/111814914789759061338noreply@blogger.com0tag:blogger.com,1999:blog-9380316.post-51982754445420861232013-09-09T09:23:00.004-04:002013-09-09T09:23:42.381-04:00Iowa Grants Gun Permits to Blind PeopleHere's the <a href="http://www.desmoinesregister.com/article/20130908/NEWS/309080061/Iowa-grants-permits-for-blind-residents-to-carry-guns-in-public?Frontpage">story</a> from the Des Moines Register that folks have been discussing all weekend. &nbsp;It seems to me that it's important to keep two issues separate here. &nbsp;One, nobody should be denied a core right of citizenship (and in the United States, gun ownership is a core right of citizenship) because of some disability label; there needs to be an individualized assessment of a person's abilities, here as elsewhere. But, two, vision impairments may in many circumstances make someone unable to safely use or own a gun, and when they are severe enough to meet the various statutory criteria for blindness they may always do so. &nbsp;In such cases, the individualized assessment that is necessary might be very quick and easy, and there's nothing wrong from a disability rights perspective with saying that one's blindness may make one unqualified for a gun permit (just as there's nothing wrong from a disability rights perspective with saying that one's blindness may make one unqualified for a driver's license). &nbsp;That's my opinion, anyway.Samuel Bagenstoshttps://plus.google.com/111814914789759061338noreply@blogger.com2tag:blogger.com,1999:blog-9380316.post-36529463242522392752013-09-06T08:45:00.003-04:002013-09-06T08:45:40.149-04:00Disability Studies Quarterly Call for Papers: Special Issue on the 25th Anniversary of the ADAYup, it's getting to that time. &nbsp;<a href="http://h-net.msu.edu/cgi-bin/logbrowse.pl?trx=vx&amp;list=H-Disability&amp;month=1309&amp;week=a&amp;msg=OccGtENcrKRr9vRupbpECQ&amp;user=&amp;pw=">Here's</a> the first in what I expect will be many calls for papers for ADA 25th Anniversary symposia. &nbsp;Watch this space for more such calls.<br /><br /><blockquote class="tr_bq">CALL FOR PAPERS&nbsp;</blockquote><blockquote class="tr_bq">2015 Special Issue of Disability Studies Quarterly&nbsp;on the Americans with Disabilities Act&nbsp;</blockquote><blockquote class="tr_bq">In 2015, Disability Studies Quarterly will publish a Special Issue to mark the 25th anniversary of the Americans with Disabilities Act. The ADA has been a watershed in American disability policy, with far-reaching effects on the status of Americans with disabilities, but has fallen far short of the expectations for social transformation with which it was enacted in 1990. The Special Issue will commemorate the ADA’s 25th anniversary with both a look back at how the ADA has affected the disability community and the larger society, and an assessment of future prospects for attaining the ADA’s goals of inclusion and empowerment.&nbsp;</blockquote><blockquote class="tr_bq">Papers that are related (broadly) to the ADA are invited from scholars from any academic or professional discipline, disability policy professionals and advocates, and from disability activists. The issue will strive to incorporate a diverse variety of perspectives within disability studies. Priority for selection will be given to manuscripts that are broadly framed and advance our understanding of the direct and indirect consequences of the ADA for people with disabilities, rather than those which focus on narrow legal, policy, or technical aspects of the Act.&nbsp;</blockquote><blockquote class="tr_bq">Some examples of potential paper topics include, but would not be limited to: The History of the Americans with Disabilities Act; The ADA and Disability Law; The ADA and the Workplace/Workforce; The ADA and Public Accommodation; The ADA and Community Living; The ADA and Disability in the Arts and Popular Culture; The ADA and Health Care; Disability Culture and Pride Since the Passage of the ADA; Disability Politics Since the Passage of the ADA; The Global Impact of the ADA and the U.N. Convention; Technology, Disability, and the ADA&nbsp;</blockquote><blockquote class="tr_bq">All submitted papers will be subject to peer review, and revisions may be requested for inclusion in the Special Issue. The deadline for submission of proposals is June 1, 2014. We anticipate that peer review and editing would be completed, and the complete issue will be submitted to DSQ before the end of 2014.&nbsp;</blockquote><blockquote class="tr_bq">Proposals or questions about the Special Issue may be directed to Richard Scotch, Special Issue Editor, at <richard .scotch="" utdallas.edu="">.</richard></blockquote>Samuel Bagenstoshttps://plus.google.com/111814914789759061338noreply@blogger.com0tag:blogger.com,1999:blog-9380316.post-20869187213289534282013-09-04T09:02:00.003-04:002013-09-04T09:02:37.518-04:00Befort Empirically Analyzes Case Outcomes Under the ADAAANew on SSRN: Stephen F. Befort, <i>An Empirical Analysis of Case Outcomes Under the ADA Amendments Act</i>, 70 Wash. &amp; Lee L. Rev. ___ (forthcoming). &nbsp;The <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2314628">abstract</a>:<br /><blockquote class="tr_bq">Congress enacted the ADA Amendments Act (ADAAA) in order to override four Supreme Court decisions that had narrowly restricted the scope of those protected by the Americans with Disabilities Act (ADA) and to provide "a national mandate for the elimination of discrimination." This article undertakes an empirical examination of the impact of the ADAA on case outcomes. The recent reported cases provide a unique opportunity for such an examination since, with the ADAAA not retroactively applicable to cases pending prior to its effective date, courts have been simultaneously deciding cases under both the pre-amendment and post-amendment standards. This study examines all reported federal court summary judgment decisions arising under Title I of the ADA for a forty-month period extending from January 1, 2010 to April 30, 2013. The study coded the pre-ADAAA and post-ADAAA decisions for both disability standing determinations and for rulings on whether the plaintiff was qualified for the job in question. These preliminary data show that the federal courts are granting employers a significantly smaller proportion of summary judgment rulings under the ADAAA on the basis of a lack of disability status. In addition, the ADAAA decisions exhibit a greater prevalence of rulings on the issue of whether the plaintiff is a qualified individual. On the other hand, the post-amendment decisions show an increased tendency for the courts to find that the plaintiff is not qualified. While the rate of increase in plaintiff victories on the disability issue is outpacing the rate of increase in plaintiff losses on the qualified issue, the latter phenomenon suggest a continuing judicial unease with disability discrimination claims generally and with reasonable accommodation requests more specifically.</blockquote>Samuel Bagenstoshttps://plus.google.com/111814914789759061338noreply@blogger.com0tag:blogger.com,1999:blog-9380316.post-26926640531873661462013-09-03T09:22:00.002-04:002013-09-03T09:22:41.966-04:00Stein, Silvers, Areheart, and Francis on Accommodating Every BodyThe all-star crew of Michael Stein, Anita Silvers, Brad Areheart, and Leslie Francis has this new piece forthcoming in the University of Chicago Law Review entitled <i>Accommodating Every Body</i>. &nbsp;Check out the <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2315271">abstract</a>:<blockquote class="tr_bq">This Article contends that workplace accommodations should be predicated on need or effectiveness instead of group identity status. It proposes “accommodating every body” by extending an Americans with Disabilities Act reasonable accommodation mandate to all work-capable members of the general population for whom accommodation is necessary to enable their ability to work. Doing so shifts the focus of accommodation disputes from the contentious identity-based contours of “disabled” plaintiffs to the core issue of alleged discrimination. This proposal likewise avoids current problems associated with excluding “unworthy” individuals from employment opportunity — people whose functional capacity does not comply with prevailing workforce design and organizational presumptions — and who therefore require accommodation. Adopting this proposal also responds to growing demands to extend the length of time people remain at work by enhancing employment opportunities for aging individuals still capable of contributing on the job. Provision of accommodations for age-related alteration of functionality, when the accommodations are effective, is reasonably prescribed because everyone hopes to retain maximum capabilities as they grow older, whether or not they also possess identity-based characteristics sufficient to constitute a “disability” under the ADA.</blockquote>I make a similar argument at points in my book (check the link on the right), so I'm obviously sympathetic to the argument. &nbsp;Check it out!Samuel Bagenstoshttps://plus.google.com/111814914789759061338noreply@blogger.com0tag:blogger.com,1999:blog-9380316.post-14498513046200043482013-09-03T09:12:00.003-04:002013-09-03T09:12:57.145-04:00Ninth Circuit Holds Hawaii Must Provide FAPE to Kids Over 20Last week, the Ninth Circuit issued an <a href="http://cdn.ca9.uscourts.gov/datastore/opinions/2013/08/28/12-16063.pdf">opinion</a> in <i>E.R.K. v. Hawaii Department of Education</i>. &nbsp;The case presented a challenge to a 2010 Hawaii statute, which barred students from attending public school after the last day of the school year in which they turned 20. &nbsp;The plaintiffs, a class of Hawaiian students who were otherwise eligible for special education but over 20, challenged that statute as in conflict with the Individuals with Disabilities Education Act. The IDEA provides that states must provide a free appropriate public education (FAPE) to all children with disabilities through age 21. The IDEA does, however, contain a provision that allows a state not to provide special education to individuals age 18 through 21 if doing so "would be inconsistent with State law or practice, or the order of any court, respecting the provision of public education to children in those age ranges." &nbsp;The state argued that its 2010 statute, which denied access to the public schools to all individuals who had turned 20 before the beginning of the school year, entitled it to the benefit of that exemption. &nbsp;But the plaintiffs noted that, although the state denied students over 20 access to the public schools, it did provide them free access to the state-operated Community Schools for Adults, which provided GED and life-skills courses but did not provide special education. &nbsp;The plaintiffs argued that if the state was going to provide this form of public education to students who had turned 20 before the beginning of the school year, that it must provide a FAPE, including special education and related services, to students with disabilities through age 21. &nbsp;The Ninth Circuit agreed with that argument.Samuel Bagenstoshttps://plus.google.com/111814914789759061338noreply@blogger.com0tag:blogger.com,1999:blog-9380316.post-66178666375996577002013-07-18T10:41:00.001-04:002013-07-18T10:41:26.761-04:00New Senate HELP Committee Report on Olmstead Implementation<div class="tr_bq">I'm going to go dark again later today, but I'll break radio silence for a few posts.</div><br />Just out: This important <a href="http://www.harkin.senate.gov/documents/pdf/OlmsteadReport.pdf">report</a> on Olmstead implementation, issued by the Senate HELP Committee. &nbsp;The executive summary:<br /><blockquote> The Supreme Court’s 1999 decision in Olmstead v. L.C. put states on notice that unnecessary segregation of individuals with disabilities is a violation of the Americans with Disabilities Act (ADA) of 1990. The ruling was hailed as the disability civil rights equivalent to Brown v. Board of Education, which ordered the desegregation of the nation’s public schools.<br /><br /> The Olmstead decision clearly articulates that ensuring individuals with disabilities are able to exercise their right to participate as citizens of the state and the country is a protected civil right under the ADA. Olmstead envisioned that states will provide appropriate long-term services and supports (LTSS) to individuals with disabilities through home and community-based services (HCBS) and end forced segregation in institutions.<br /><br /> Previous testimony before the Committee illustrates the discriminatory nature of institutionalization. One individual stated simply: “People need to have high expectations for people with disabilities because then they’ll give them opportunities to learn and grow. People don’t grow in…institutions.”<br /><br /> Nationally, there has been a fundamental rebalancing of spending on individuals with disabilities in institutions as compared to spending on HCBS in the years since the Olmstead decision. Between 1995 and 2010, states reduced the share of Medicaid spending on institutions, including nursing homes, mental hospitals, and institutions for people with intellectual and developmental disabilities, from 79 percent to 50 percent.<br /><br /> However, these numbers fail to paint a complete picture. In reality, only 12 states spent more than 50 percent of Medicaid LTSS dollars on HCBS by 2010. Further, the population of individuals with disabilities under 65 in nursing homes actually increased between 2008 and 2012. This is true even though 38 studies over the past seven years have clearly demonstrated that providing HCBS is more cost-effective than providing services in an institution.<br /><br /> Last year, on the 13th anniversary of the Olmstead decision, Chairman Harkin requested information from all 50 states on the progress being made to ensure that all individuals with disabilities have the opportunity to live independently in the community through the use of HCBS.<br /><br /> The result of the survey demonstrates that, with a few exceptions, state leaders continue to approach decisions regarding Medicaid from a social welfare and budgetary perspective. For the promise of Olmstead to be fully realized, state leaders must also approach decisions about Medicaid delivery options from a civil rights perspective. To do so, states must create an Olmstead plan with enforceable benchmark targets—one that fully evaluates whether a state can take advantage of new federal options to better ensure that individuals can live in community-based settings where they can fully participate and be granted the power of individual decision making and choice.</blockquote>The report also contains extensive recommendations -- definitely worth a look! Samuel Bagenstoshttps://plus.google.com/111814914789759061338noreply@blogger.com0tag:blogger.com,1999:blog-9380316.post-79217049315660626252013-06-11T08:43:00.000-04:002013-06-11T08:43:27.959-04:00Gone Fishin'I'm heading away for a few weeks, in part for this <a href="http://www.upf.edu/gredtiss/en/LLRN/conference.html">conference</a>, and in part for a vacation. &nbsp;Don't expect any posts from me until I return, though I may <a href="https://twitter.com/sbagen">tweet</a> some.Samuel Bagenstoshttps://plus.google.com/111814914789759061338noreply@blogger.com0tag:blogger.com,1999:blog-9380316.post-49951961201645937432013-06-05T08:33:00.001-04:002013-06-05T08:33:23.127-04:00DOJ Reaches Hearing Access Settlement with New Haven<div class="tr_bq">See this <a href="http://nhregister.com/articles/2013/06/03/news/new_haven/doc51ad292cee57f220741643.txt">article</a> in the New Haven Register. &nbsp;It begins:</div><blockquote>The U.S. Department of Justice and the city have reached a settlement agreement that will ensure the city provides adequate services to individuals who are deaf or have difficulty hearing, according to a Justice Department statement.&nbsp;</blockquote><blockquote>The agreement comes after two complaints alleged that the Livable City Initiative and New Haven Police Department failed to provide interpreters for individuals who are deaf or have difficulty hearing, during investigations, arrests or other actions, from 2008 to 2011, the release said. The Livable City Initiative is an agency focused on neighborhood enhancement and improvement through the enforcement of codes and space requirements.&nbsp;</blockquote><blockquote>The Americans with Disabilities Act requires local governments and police departments to provide adequate services for persons with disabilities. The ADA also requires adequate training for staff.</blockquote>Samuel Bagenstoshttps://plus.google.com/111814914789759061338noreply@blogger.com0tag:blogger.com,1999:blog-9380316.post-68822654060827029422013-06-05T08:28:00.004-04:002013-06-05T08:28:46.928-04:00HUD Issues Olmstead Guidance<div class="tr_bq">Yesterday, the Department of Housing and Urban Development issued a <a href="http://portal.hud.gov/hudportal/documents/huddoc?id=OlmsteadGuidnc060413.pdf">guidance</a> document on the implementation of <i><a href="http://scholar.google.com/scholar_case?q=olmstead+v.+lc&amp;hl=en&amp;as_sdt=2,23&amp;case=1057318245348059744&amp;scilh=0">Olmstead</a></i>&nbsp;in HUD-funded programs. &nbsp;Integrated housing is a crucial piece of <i>Olmstead</i>&nbsp;implementation, so it's exceptionally important that HUD issued this guidance. &nbsp;From the introduction:</div><blockquote>Individuals with disabilities have historically faced discrimination that limited their opportunity to live independently in the community and required them to live in institutions and other segregated settings. In 1999, the United States Supreme Court issued the landmark decision in Olmstead v. L.C., 527 U.S. 581 (1999), affirming that the unjustified segregation of individuals with disabilities is a form of discrimination prohibited by Title II of the Americans with Disabilities Act (ADA). Following the Olmstead decision, there have been increased efforts across the country to assist individuals who are institutionalized or housed in other segregated settings to move to integrated, community-based settings. In addition, states are “rebalancing” health care delivery systems by shifting away from an overreliance on providing long-term services and supports to individuals with disabilities in institutions, hospitals, nursing homes, adult care facilities, and other restrictive, segregated settings and moving towards a greater reliance on home- and community-based services. For many states, these efforts to comply with Olmstead and rebalance the way long-term services and supports are provided by moving individuals out of institutions and into the community are confounded by a lack of integrated housing options for individuals with disabilities. As a result, there is a great need for affordable, integrated housing opportunities where individuals with disabilities are able to live and interact with individuals without disabilities, while receiving the health care and long-term services and supports they need.<br /> <br />Individuals with disabilities, like individuals without disabilities, should have choice and self- determination in housing and in the health care and related support services they receive. For this reason, HUD is committed to offering individuals with disabilities housing options that enable them to make meaningful choices about housing, health care, and long-term services and supports so they can participate fully in community life. As more states facilitate the transition of individuals with disabilities from institutional or other segregated settings into their communities, the need for meaningful choice among housing options is critical. For communities that have historically relied heavily on institutional settings and housing built exclusively or primarily for individuals with disabilities, the need for additional integrated housing options scattered throughout the community becomes more acute.<br /><br />HUD programs serve as an important resource for affordable housing opportunities for individuals with disabilities, including individuals who are transitioning out of, or at serious risk of entering, institutions. HUD funds the operation, management, development, preservation, and rehabilitation of affordable housing. HUD’s portfolio includes tenant-based housing vouchers, apartment buildings that serve a wide variety of individuals and families, and numerous other programs that provide permanent and transitional housing with or without supportive services to individuals with and without disabilities. </blockquote><br /><br /><div class="column"><div class="column"> </div></div>Samuel Bagenstoshttps://plus.google.com/111814914789759061338noreply@blogger.com0tag:blogger.com,1999:blog-9380316.post-649407411940648572013-05-30T09:31:00.001-04:002013-05-30T09:31:05.466-04:00New Wellness RegulationsSee this <a href="http://www.nytimes.com/2013/05/30/business/new-rules-give-employers-leeway-on-use-of-health-incentives.html?_r=0">story</a> in the New York Times, which begins:<br /><blockquote class="tr_bq">The Obama administration issued a final rule on Wednesday that gives employers greater leeway to use employee wellness programs, with financial rewards and penalties for workers worth up to 50 percent of the premium as an incentive to exercise,&nbsp;<a href="http://health.nytimes.com/health/guides/specialtopic/smoking-tips-on-how-to-quit/overview.html?inline=nyt-classifier">quit smoking</a>, lose weight, eat more healthful food and lower&nbsp;<a href="http://health.nytimes.com/health/guides/nutrition/cholesterol/overview.html?inline=nyt-classifier">cholesterol</a> and <a href="http://health.nytimes.com/health/guides/test/blood-pressure/overview.html?inline=nyt-classifier">blood pressure</a>.&nbsp;</blockquote><blockquote class="tr_bq">Tens of millions of workers could be affected. More than 90 percent of employers with 200 or more employees have programs to promote healthful behavior or prevent disease, the Labor Department says.&nbsp;</blockquote><blockquote class="tr_bq">The rule allows employers to reward or penalize employees who meet specific standards related to their health. Such “outcome-based wellness programs” could, for example, reward employees who do not use tobacco or who achieve a specific cholesterol level, weight or body mass index.&nbsp;</blockquote><blockquote class="tr_bq">However, an employer-sponsored health plan must provide “a reasonable alternative standard” so that employees can qualify for rewards if they fail to meet the initial standard.</blockquote>I'll have some analysis of the rule in the next week or so.Samuel Bagenstoshttps://plus.google.com/111814914789759061338noreply@blogger.com0tag:blogger.com,1999:blog-9380316.post-10442686254572078922013-05-30T08:39:00.000-04:002013-05-30T08:39:10.027-04:00California Supreme Court Considers Insulin-in-Schools Case<div class="tr_bq">See this <a href="http://www.latimes.com/news/local/la-me-diabetic-students-20130530,0,3987454.story">coverage</a> from the LA Times, which begins:</div><blockquote>Several members of the California Supreme Court appeared wary Wednesday of requiring public schools to provide licensed <a href="http://www.latimes.com/topic/health/medical-specialization/nursing-HEMSP000015.topic">nurses</a> to administer&nbsp;<a href="http://www.latimes.com/topic/health/health-treatments/insulin-injections-HETHT00000020.topic">insulin injections</a> and other medications to schoolchildren.<br /><br />The powerful California Nurses Assn. has argued that state law requires licensed nurses to provide insulin injections and other medicines, and two lower courts have agreed. The American <a href="http://www.latimes.com/topic/health/diseases-illnesses/diabetes-HEDAI0000022.topic">Diabetes</a> Assn. appealed. During a hearing, some justices on the state high court appeared skeptical of the nurses' arguments.&nbsp;</blockquote><blockquote>Justice Ming W. Chin, noting that few schools have full-time nurses, questioned why districts should have to call in a licensed practitioner to administer a shot that a child's parents and physician have agreed could be given by an unlicensed but trained employee.</blockquote>For full disclosure, I should note that when I was at DOJ I signed a <a href="http://www.justice.gov/crt/about/app/briefs/anavoconnell.pdf">brief</a> in this case arguing that the state Nurse Practices Act, to the extent that it is construed to prevent unlicensed but trained school employees from administering insulin injections to students with diabetes, is preempted by the IDEA, Section 504, and the ADA.Samuel Bagenstoshttps://plus.google.com/111814914789759061338noreply@blogger.com2tag:blogger.com,1999:blog-9380316.post-44594125146874020182013-05-22T08:25:00.001-04:002013-05-22T08:25:22.313-04:00Interesting Article on the Construction of Disability in ChinaNew on SSRN: Yee-Fui Ng,&nbsp;<i>Disability Rights v. Quality Birth Rhetoric: The Construction of Disability in China</i>,&nbsp;(2012) LAWASIA Journal 1. &nbsp;The <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2261015">abstract</a> doesn't really tell you much, but here's an excerpt from the paper:<br /><blockquote class="tr_bq">This article explores the tension between China’s strong engagement in the area of disability, and the widespread acceptance in China of the importance of ‘quality birth’ (or suzhi) and the resultant perceived need to reduce the number of disabled babies being born.5 This article aims to explore this tension by critically analysing the laws and government rhetoric on disability rights, against the ‘quality birth’ laws and rhetoric, which include laws sanctioning sterilisation of disabled couples. At a broader level, the article examines the strategic way in which the Chinese government uses the language of disability in the two separate strands of disability discourse. In doing this, the article also sheds light on how the disabled are defined, administered, policed and governed in postsocialist China.<br /> <br />I argue that although at face value the Chinese government’s emphasis on disability rights and the simultaneous focus on ‘quality births’ seem to be diametrically opposed, these separate rhetorical strands work harmoniously with each other due to the pervasive influence of suzhi or ‘quality’ on the government and the Chinese population. My contention is that the combined effect of government policy in the area of disability is that there will be fewer people born with disabilities in Chinese society, as pre-birth disabilities are to be prevented through abortion to increase the ‘quality’ of the population, while those disabled post-birth are rehabilitated under the Chinese government’s disability rights efforts to contribute to the socialist regime. I also argue that as the concept of ‘quality’ strongly permeates contemporary Chinese society, where the Chinese public self-regulate, their behaviour and goals are aligned with the government to reduce perceived ‘low quality’ births; thus disabled foetuses are more likely to be aborted. </blockquote><br /> Samuel Bagenstoshttps://plus.google.com/111814914789759061338noreply@blogger.com0tag:blogger.com,1999:blog-9380316.post-86467411191826087952013-05-20T09:20:00.006-04:002013-05-20T09:20:55.888-04:00N.D. Ohio Grants Summary Judgment to Plaintiff in Fair Housing Act Failure-to-Accommodate CaseLast week, Senior District Judge James G. Carr of the United States District Court for the Northern District of Ohio issued an opinion in <i>Vance v. City of Maumee</i>,&nbsp;2013 WL 2102845 (N.D. Ohio, May 15, 2013). &nbsp;The principal plaintiff, a woman with significant and progressive disabilities that made it increasingly hard for her to climb stairs, had asked the city, 15 years after she bought her house, to pave the alley behind her house. &nbsp;Because the alley was on the same level as her house, while the street in front of the house was down a substantial hill, paving the alley would enable her to get into her house without climbing the 18 stairs in front -- a climb she could no longer manage without crawling slowly on her hands and knees. &nbsp;The plaintiff offered to arrange and pay for the repaving herself and to put up a bond, but the city council refused to consider her petition. &nbsp;She then began construction on a parking pad behind her house, and incidentally put some gravel on the alley, but city officials threatened to fine her and placed a "road closed" sign in front of the alley.<div><br /></div><div>On cross motions for summary judgment, the district court concluded that the city's actions constituted a failure to accommodate that violated the Fair Housing Act and the ADA. &nbsp;Notably, the court rejected the city's argument that "the FHA protects only the right to live in a residential neighborhood, not the right to live in a specific dwelling." &nbsp;To the contrary, the court concluded, "[t]he FHA protects the right of disabled individuals 'to enjoy the housing of their choice.' This encompasses a right to live in residential neighborhoods as well a right to live in the residence of one's choice." &nbsp;The court also rejected the city's argument that the accommodation was not necessary to enable the plaintiff to live in her home:</div><blockquote class="tr_bq">The City has earlier suggested to Plaintiff that she install a chair lift on the stairs leading from her garage to the first floor of her home. Expense aside, Plaintiff told the City that a lift would not ameliorate the effects of her disability. This is so, according to Plaintiff, because the stairs leading from the garage to her first floor are “split”—the top section proceeds in a different direction than the bottom section. Plaintiff thus would either have to purchase two separate lifts or be stuck between the two sets of stairs leading from her garage to her home.&nbsp;</blockquote><blockquote class="tr_bq">The City now contends that Plaintiff should solve her own problem by installing a ramp or a driveway extension. According to the City's report, the ramp would consist of four smaller ramps, each 26 feet long, and multiple switchbacks. The report does not opine on the cost of installing either the ramp or the driveway extension. It was incumbent on the City to do so.&nbsp;</blockquote><blockquote class="tr_bq">Unlike in [an earlier case], the “alternatives” the City suggests to Plaintiff are both costly, or at least appear so, and unduly burdensome. Plaintiff, moreover, is will, as the ordinance allows, to bear the necessary costs for placing gravel on the alley. Thus the City would incur no construction burden or cost from allowing Plaintiff to make any necessary alley alterations.&nbsp;Moreover, accessing her home from her backyard would substantially alleviate the pain, inconvenience, and embarrassment Plaintiff currently endures.<br /><br />Moreover, by allowing plaintiff to enter and leaver her home more easily would more completely make coming and going as relatively easy for her as for most homeowners. An accommodation which fails to reach this aspect of a disabled person's life also fails, in my view, to be as accommodating as, whenever reasonably possible, it should be.</blockquote><div>This last paragraph, it seems to me, well encapsulates the antidiscrimination and integration purposes of the FHA.</div>Samuel Bagenstoshttps://plus.google.com/111814914789759061338noreply@blogger.com0tag:blogger.com,1999:blog-9380316.post-1772584416173270672013-05-20T09:02:00.002-04:002013-05-20T09:02:31.059-04:00Good Reuters Piece on Recent EEOC GINA Activity<div class="tr_bq">See this <a href="http://newsandinsight.thomsonreuters.com/Legal/News/2013/05_-_May/EEOC_lawsuits_signal_focus_on_genetics_law/">article</a>, which begins:</div><blockquote>The U.S. Equal Employment Opportunity Commission has signaled it will actively sue employers it suspects of misusing genetic information to discriminate in the workplace, filing its first class action using a 5-year-old law known as GINA just days after winning its first case.&nbsp;</blockquote><blockquote>The EEOC said last week that it had filed a class action against Founders Pavilion Inc, a rehabilitation and nursing facility in Corning, New York, using the Genetic Information Nondiscrimination Act (GINA).&nbsp;</blockquote><blockquote>Earlier this month, the commission announced it had obtained a $50,000 settlement for a worker from fabric distributor Fabricut in Tulsa, Oklahoma, in the first GINA case the commission brought after the law was passed in 2008.</blockquote>Samuel Bagenstoshttps://plus.google.com/111814914789759061338noreply@blogger.com0tag:blogger.com,1999:blog-9380316.post-71472700576150824602013-05-13T08:15:00.002-04:002013-05-13T08:15:20.809-04:00New York City to Reduce Use of Solitary Confinement for Inmates with Mental Illness<div class="tr_bq">See this story from the New York Times. &nbsp;It <a href="http://www.nytimes.com/2013/05/13/nyregion/a-new-approach-to-disciplining-mentally-ill-inmates.html?emc=tnt&amp;tntemail0=y&amp;_r=0">begins</a>:</div><blockquote>New York City will soon change the way mentally ill inmates are disciplined after breaking rules while in jail, creating alternatives to the more <a href="http://www.nytimes.com/2012/04/13/us/deal-to-reduce-isolation-of-mentally-ill-inmates-in-massachusetts.html">traditional approach of solitary confinement</a> used for most inmates.&nbsp;</blockquote><blockquote>Instead, the city Correction Department will transfer severely mentally ill inmates to an internal clinic where psychiatrists will administer treatment and medicine, and the less seriously mentally ill will go to counseling programs designed to help them change their future behavior. Inmates will not be released back into the regular jail setting until they complete treatment.&nbsp;</blockquote><blockquote>The new approach, to begin in July, is intended to address what both city officials and prisoners’ rights advocates say is a growing problem: not only are there a disproportionate number of mentally ill inmates in the city’s jails, but they are also more likely to break rules multiple times and stay in jail longer than others.</blockquote>Samuel Bagenstoshttps://plus.google.com/111814914789759061338noreply@blogger.com1tag:blogger.com,1999:blog-9380316.post-71889808061679880852013-05-09T09:08:00.000-04:002013-05-09T09:08:06.110-04:00Eleventh Circuit Rules on Medical Examinations for Current EmployeesYesterday, the United States Court of Appeals for the Eleventh Circuit issued an <a href="http://www.ca11.uscourts.gov/opinions/ops/201113663.pdf">opinion</a> in <i>Owusu-Ansah v. Coca-Cola Company</i>. &nbsp;At the time at issue in the case, Owusu-Ansah worked for Coca-Cola as a quality assurance person for customer service representatives in the company's call center ("your call is being monitored for quality assurance"). &nbsp;In this position, he worked mostly from home. &nbsp;In December 2007, however, he went to the office for a routine management meeting with his supervisor. At the meeting, according to the record as reviewed by the court, Owusu-Ansah complained about a number of instances of national origin discrimination and harassment he said he had experienced at the hands of his supervisors and coworkers. &nbsp;His supervisor "observed that Mr. Owusu-Ansah became agitated during the meeting, banged his hand on the table where they sat, and said that someone was 'going to pay for this.'" &nbsp;<div><br /></div><div>Concerned about that behavior (Owusu-Ansah's, not the behavior of those who allegedly discriminated against Owusu-Ansah), company management asked him to be interviewed by a consulting psychologist. &nbsp;After the interview, the company placed Owusu-Ansah on paid leave to enable him to be further evaluated as a potential safety threat. &nbsp;The company directed Owusu-Ansah to undergo a psychiatric evaluation, which included taking the Minnesota Multiphasic Personality Inventory (MMPI). &nbsp;He first refused to take the MMPI, but eventually took the test in March 2008. &nbsp;After reviewing the results of the test, Coca-Cola allowed Owusu-Ansah to return to work in April.</div><div><br /></div><div>Owusu-Ansah sued under the ADA, which prohibits employers from requiring current workers to undergo medical examinations or inquiries "unless such examination or inquiry is shown to be job-related and consistent with business necessity." &nbsp;42 U.S.C. 12112(d)(4)(A). &nbsp;The district court granted summary judgment to the company, and the Eleventh Circuit yesterday affirmed.</div><div><br /></div><div>The court of appeals held that the psychological evaluation, including the requirement that Owusu-Ansah take the MMPI, was "job-related and consistent with business necessity" (I've omitted citations and footnotes):</div><blockquote>The evaluation was "job-related" because an "employee's ability to handle reasonably necessary stress and work reasonably well with others are essential functions of any position." [Quoting an earlier Eleventh Circuit case] Ms. Cabral reported that Mr. Owusu-Ansah – in the course of complaining about discrimination and harassment – banged his fist on the table and said in a raised voice that someone was "going to pay for this." When he was deposed, Mr. Owusu-Ansah denied having behaved that way during his meeting with Ms. Cabral, and he now points out that there were no prior incidents showing that he had a propensity for workplace violence. That, however, is not dispositive. Although Coca-Cola apparently never asked Mr. Owusu-Ansah for his version of what happened at the meeting, it did not rely solely on Ms. Cabral's account in ordering the evaluation. Coca-Cola knew that Mr. Owusu-Ansah had refused to speak to Ms. Welsh and Dr. Riddell about his workplace problems. In addition, Dr. McElhaney – the consulting psychologist – expressed "significant concerns" to Coca-Cola about Mr. Owusu-Ansah's emotional and psychological stability, and recommended a psychiatric/psychological fitness-for-duty evaluation.<br /><br />On this record, we conclude that Coca-Cola had a reasonable, objective concern about Mr. Owusu-Ansah's mental state, which affected job performance and potentially threatened the safety of its other employees. Though Mr. Owusu- Ansah worked from home, he had access to and was required to attend meetings at the Dunwoody call center.<br /> <br />For basically the same reasons, the evaluation was also "consistent with business necessity." Though it may not be one of the traditional canons of statutory construction, common sense is not irrelevant in construing statutes,4 and in our view an employer can lawfully require a psychiatric/psychological fitness- for-duty evaluation under § 12112(d)(4)(A) if it has information suggesting that an employee is unstable and may pose a danger to others. </blockquote>This case doesn't look to have been the best litigated by plaintiffs' counsel (who apparently failed to object to the factual aspects of the magistrate judge's recommended ruling in the district court), but the opinion is nonetheless troubling in the low bar it sets for a psychological evaluation. &nbsp;How many folks have raised their voices and banged on the table when complaining about workplace mistreatment without being a safety risk? &nbsp;I would bet it's a lot.Samuel Bagenstoshttps://plus.google.com/111814914789759061338noreply@blogger.com0tag:blogger.com,1999:blog-9380316.post-69863809754350870552013-05-09T08:36:00.002-04:002013-05-09T08:36:44.472-04:00DOJ Obtains $60K Settlement Against Golden Corral for Denying Service to Family of Kid with Skin ConditionSee this <a href="http://www.freep.com/article/20130508/NEWS02/305080119/Westland-restaurant-lawsuit-Golden-Corral">article</a>, which begins:<blockquote>A Westland restaurant has agreed to pay a mother and her<a href="http://www.freep.com/article/20130508/NEWS02/305080119/Westland-restaurant-lawsuit-Golden-Corral#">children<img src="http://images.intellitxt.com/ast/adTypes/icon1.png" /></a> $50,000 for asking them to leave because one of the daughters had a blistering skin disorder that was making customers uncomfortable.&nbsp;</blockquote><blockquote>According to the settlement announced Wednesday by U.S. Attorney Barbara McQuade, the Golden Corral buffet-style restaurant also will pay $10,000 in civil penalties to the U.S. The incident happened in 2011, triggering a Justice Department lawsuit.&nbsp;</blockquote><blockquote>According to the suit, a manager at the Golden Corral restaurant demanded that Danielle Duford and her four daughters leave the restaurant during a dinner outing because of the appearance of one of the children’s skin. The <a href="http://www.freep.com/article/20130508/NEWS02/305080119/Westland-restaurant-lawsuit-Golden-Corral#">child<img src="http://images.intellitxt.com/ast/adTypes/icon1.png" /></a>, the suit said, has a genetic skin disorder known as epidermolysis bullosa, which causes blisters to form on the skin in response to minor injuries and temperature changes.</blockquote>Samuel Bagenstoshttps://plus.google.com/111814914789759061338noreply@blogger.com0tag:blogger.com,1999:blog-9380316.post-36790380919374374582013-05-09T08:30:00.002-04:002013-05-09T08:30:45.472-04:00Op-Ed on Disability Discrimination in Milwaukee School Voucher Program<div class="tr_bq">See this <a href="http://www.jsonline.com/news/opinion/special-ed-vouchers-wont-end-discrimination-ha9sa6v-206667501.html">piece</a>. &nbsp;Excerpts:</div><blockquote>What do these children have in common? They all have disabilities, they all tried to participate in the Milwaukee Parental Choice Program and they all were denied admission, not served or pushed back into public schools by private voucher schools. These children have become part of a dual education system that segregates the overwhelming majority of children with disabilities in public schools, while providing them with fewer and fewer resources.&nbsp;</blockquote><blockquote>Pro-voucher forces claim that private schools serve many children with disabilities, but they have no serious data to prove it. The schools told the state Department of Public Instruction that only 1.6% of their children were students with disabilities for testing purposes. A study they use to argue that 14% of voucher students have disabilities only says that 14.6% of children who attended both Milwaukee Public Schools and voucher schools were in special education in MPS.&nbsp;</blockquote><blockquote>* * *&nbsp;</blockquote><blockquote>Pro-voucher forces argue that the solution is to create a separate special needs voucher program, which will make things worse because no private school will have to accept those vouchers. Thus, private schools will continue to pick and choose which children with disabilities they want to serve. At the same time, children will lose their federally protected special education rights. And some special needs voucher supporters want to create segregated schools for children with disabilities, further undermining efforts to integrate these children into schools and communities.</blockquote>Samuel Bagenstoshttps://plus.google.com/111814914789759061338noreply@blogger.com0tag:blogger.com,1999:blog-9380316.post-88859036620634045532013-05-08T08:43:00.002-04:002013-05-08T08:43:21.171-04:00Hoffman on Sheltered WorkshopsJust out: Laura C. Hoffman, <i>An Employment Opportunity or a Discrimination Dilemma? Sheltered Workshops and the Employment of the Disabled</i>,&nbsp;16 U. Pa. J. L. &amp; Soc. Change 151 (2013). &nbsp;From the introduction:<blockquote>In January 2011, a U.S. disability rights organization, National Disability Rights Network (NDRN), published a report that criticizes the use of certain employment practices involving people with disabilities. Within the report, NDRN argues that the continued use of these practices amounts to the systemic discrimination of the disabled in employment, rather than to the assured provision of civil rights protections for the disabled.&nbsp;One of these practices is the use of sheltered workshops, which are “facility-based day programs attended by adults with disabilities as an alternative to working in the open labor market.” By providing relatively simple work activities and customized educational programs, these workshops may be designed to assist the disabled with finding long-term employment or transitioning into the open labor market. However, according to the Executive Director of NDRN, “[s]heltered workshops are not what they promise to be, and sometimes serve as an unsettling example of how good intentions can lead to terrible outcomes.”&nbsp;This report was only the beginning for NDRN on this issue; the organization released another report in April 2012 containing even more criticism for the use of sheltered workshops as an employment option for people with disabilities, bringing even greater attention to this issue both within the disability community and across the United States. &nbsp;</blockquote><blockquote>The U.S. also has a number of federal laws designed to ensure equal opportunity in employment for people with disabilities.&nbsp;Most notably, Title I of the Americans with Disabilities Act (ADA) prohibits discrimination against the disabled in all aspects of employment for covered entities. Despite these protections, many of the employment practices implemented for the benefit of the disabled do not actually result in additional equal employment opportunities. Recent statistics released by the Bureau of Labor Statistics (BLS) at the U.S. Department of Labor paint a dismal picture for the overall employment prospects of people with disabilities. According to the BLS report, “[i]n 2011, 17.8 percent of persons with a disability were employed . . . . [i]n contrast, the employment-population ratio for persons without a disability was 63.6 percent.” Moreover, the disabled population continued to show greater joblessness than the non-disabled population through June 2012, according to statistics compiled on a monthly basis for U.S. employment overall. &nbsp;</blockquote><blockquote>Given these troubling statistics, it is necessary to ask whether sheltered workshops are a relevant and successful means of encouraging the employment for the disabled today. Do sheltered workshops represent an antiquated view of people with disabilities and continue what was thought to be an outdated mentality concerning those with disabilities and their ability to participate in society, especially in terms of employment? Or, do sheltered workshops provide something of value and worth to the disabled, by at least providing the opportunity for employment? This Article reexamines the use of sheltered workshops for the employment of the disabled and what this use means for the current legal protections in employment available to individuals with disabilities.</blockquote>Samuel Bagenstoshttps://plus.google.com/111814914789759061338noreply@blogger.com0tag:blogger.com,1999:blog-9380316.post-47006675163344262142013-05-08T08:30:00.001-04:002013-05-08T08:30:11.098-04:00Poisoning the Treaty for the Blind<div class="tr_bq">See this <a href="http://www.huffingtonpost.com/jim-fruchterman/poisoning-the-treaty-for-_b_3225181.html">piece</a> by that title in the Huffington Post. &nbsp;An excerpt:</div><blockquote>For years, international negotiations have been moving forward on what many have come to know as the "<a href="http://www.huffingtonpost.com/jim-fruchterman/visually-impaired-rights_b_1820365.html">Treaty for the Blind</a>." The goal of the treaty is to make it possible for people who are blind, or have other print disabilities, to get access to the books they need for education, employment and inclusion in society--no matter where they live. It's something we already do, with great success, in the United States. Early versions of the treaty embodied this principle, and in addition, would ease the international transfer of accessible books for people with disabilities.&nbsp;</blockquote><blockquote>In the end, a good treaty would mean real progress, and allow accessible books to reach millions of disabled people in other countries. Extending our own principles--that should be the United States' negotiating position.&nbsp;</blockquote><blockquote>Now, the progress made is all in jeopardy. Private interests have been hard at work to insert poison pills in the treaty, such as provisions that make the treaty either unpalatable for many countries to sign on to it or too complex to implement. It's a terrible case of private interest trumping the public good.</blockquote>Samuel Bagenstoshttps://plus.google.com/111814914789759061338noreply@blogger.com0tag:blogger.com,1999:blog-9380316.post-50708368760601144852013-05-08T08:23:00.003-04:002013-05-08T08:23:53.746-04:00LA Times on UC Berkeley SettlementNice article <a href="http://www.latimes.com/local/lanow/la-me-ln-college-disabled-20130507,0,372530.story">here</a>. &nbsp;It begins:<br /><blockquote><a href="http://www.latimes.com/topic/education/colleges-universities/university-of-california-berkeley-OREDU00000197.topic">UC Berkeley</a> is making its vast library collections and course textbooks more readily available to students with visual and other impairments under an agreement reached Tuesday that could set a precedent for universities nationwide.<br /><br />The settlement with the nonprofit legal group Disability Rights Advocates was reached after more than a year of negotiations and will provide students with physical, developmental, learning and visual disabilities more timely access to printed materials in alternative formats such as Braille, large print and audio.&nbsp;</blockquote><blockquote>The agreement is important because there are few standards required on such accessibility. The Americans with Disabilities Act, for example, doesn’t spell out what accommodations schools must make and includes a clause allowing schools not to make any concessions if costs create an undue burden, said Rebecca Williford, an attorney for the disability rights organization. </blockquote>Samuel Bagenstoshttps://plus.google.com/111814914789759061338noreply@blogger.com0